Tuesday, April 9, 2013

AZ Did It, CA's Next; Why Stop There?

Arizona Gov. Jan Brewer signed SB 1148 on April 3.

This new law prohibits people working for employers in the state from filing workers’ compensation claims for injuries suffered while temporarily working in other states.

SB 1148 defines temporary work as fewer than 90 continuous days out of the 365 days immediately preceding the date of injury. In addition to prohibiting an Arizona worker from claiming benefits in another state, the bill also prohibits an out-of-state worker from seeking benefits in Arizona provided:
  • The employer has a policy that covers his workers while they are in Arizona.
  • The laws of the state covering the workers temporarily assigned to Arizona are the sole remedy against an employer for a workplace injury.
  • An Arizona employer with workers temporarily in another state is subject to Arizona workers’ compensation laws, not the laws of the other state.
Arizona is mad at California and apparently isn't going to take it anymore.

Jim Stabler, chief counsel for SCF Arizona, testified in support of the bill during a House Commerce Committee hearing in March. Stabler said SCF has to maintain a full-time third-party claims office in California because of the state’s “nebulous cumulative trauma doctrine.”

"Nebulous" is defined as "hazy, vague, indistinct, or confused."

From Sullivan on Comp, section 5.5:

A cumulative injury is commonly referred to as a cumulative trauma (CT) injury or a continuous trauma injury. Per LC 3208.1, a cumulative injury occurs as a result of "repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or the need for medical treatment." The California Supreme Court has also stated that a cumulative injury occurs "as the result of a number of minor strains over a period of time" and are "traumas which are minor in themselves but eventually result in disability." The Court of Appeal has added, "A cumulative injury is one which results from repetitive events, occurring during each day's work, which in combination cause any disability or need for medical treatment."

I don't find this doctrine "nebulous" at all - it may be disconcerting to someone not from California, or an insurance executive with uncomfortable with California law, or a professional sports team seeking to escape long term liability for traumatic brain injury medical claims - but I would not characterize it as nebulous.

Yesterday the California Applicants Attorneys Association (CAAA) issued a press release statement officially condemning AB 1309 (Perea, D-Fresno), a measure similar to the one just signed into law in Arizona.

Assemblyman Perea said in a statement after his bill was introduced that “there’s no rationale for burdening our system with thousands of claims for millions of dollars for non-specific injuries from athletes with little connection to our state.” Athletes are entitled to workers’ compensation benefits, “but they should file where they work and live, like anyone else,” he added.


So are traveling salespeople, truck drivers, flight attendants, migrant farm workers, executives with multi-state jurisdictions, etc.

Oh, and don't forget the coaches, cheerleaders, attendants and all of the other people that travel with the athletes.

Why are athletes singled out?

What is different about professional football, baseball, hockey and basketball players?

That's rhetorical - the difference is long term medical issues - like traumatic brain injury, encephalitis, hip and other joint replacements - medical issues that have root in long term abuse and over use, but otherwise would not be covered by a state's workers' compensation system (other than California's) because they are maladies that build up over time. THAT's what's different.

California recognizes that some injury modalities may not be properly recognized in the context of a single "injury".

Like it or revile it - California grew to the nation's biggest state in part because the government made a promise to the people that moved here that there was a safety net. Some of that safety net is in state disability coverage, some of it is in state unemployment benefits, and some of it is in California's workers' compensation laws.

Is it perfect?

Heck no - far from it. And we have seen the response from business groups since the early 1990s trying to rectify what they see as an impediment to their thinking of how business should be done.

The real danger with AB 1309, as CAAA rightly points out, is that it is the first step towards the entire elimination of the cumulative trauma doctrine.

As much as I dislike the multitude of presumptions that favor certain classes of workers making injury claims, I also dislike the discrimination against certain classes of workers.

And more importantly, I disfavor the disintegration of laws that seek to provide redress and remedy where an injury, as real as any other injury, doesn't fit neatly within the context of a specific event.

Arizona can have their SB 1148 (thought I think the people of that state will live to regret it). But California doesn't need AB 1309.

Supporters of AB 1309 should be truthful and admit that they'd just rather get rid of workers' compensation ... if only they could also avoid civil liability for using up the working class.

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